REMOTE HEARINGS AND THE “MacMICRO FRIEND”: A NEW LEGAL CONCEPT IS BORN…

The judgment of Mr Justice Williams in Padero-Mernagh v Mernagh (Divorce: Nullity: Remote Hearing) [2020] EWFC 27 introduces a new legal concept, the ‘MacMicro friend”. In all seriousness this is something that will have to be considered given that family directions, in particular, usually require that nobody else is present in the room with the remote participant whilst the hearing is going on. It should probably be incorporated into all orders in relation to remote hearings, particularly those involving litigants in person.

“Confirm all present who were expected and no one unauthorised, save that a person could be present to assist the Litigants in Person with managing technology but not to help with giving evidence or submissions“

“The respondent’s need for occasional assistance with the technology demonstrated the benefit of having a ‘MacMicro’ friend in easy reach.”

THE CASE

The judge was conducting a case, originally listed for three days, relating to a divorce petition. Both the petitioner and respondent were acting in person. The hearing went ahead remotely.

The order of 11 November 2019 originally provided for a three-day hearing which was expected to take place at the Family Court sitting in Leeds. That was duly listed for 30 March 2020. The development of the coronavirus pandemic intervened. The President of the Family Division issued ‘COVID 19: National Guidance for the Family Court 19th March 2020′. This was followed by the directions from the Lord Chief Justice on 24 February 2020 which stated that ‘No hearings which require people to attend are to take place in any County or Family Court until further notice, unless there is genuine urgency and no remote hearing is possible. All cases currently being heard should be adjourned part heard so that arrangements can be made, where possible, to conduct the hearing remotely.‘ I considered that it was likely that a fair hearing could be achieved remotely. I was conscious of the fact that at the hearing on 11 November 2019 both parties had expressed a wish for the matter to be concluded as quickly as possible.

Arrangements were made with the parties and the Queen’s Proctor for this hearing to be conducted remotely by Skype for business. The 30th March was set aside for reading and for testing the Skype facility. The hearing itself was to take place on 31 March with 1 April being set aside for judgment writing. Testing of the Skype link took place successfully on 30 March.

In advance of the hearing Mr Murray on behalf of the Queen’s Proctor provided written submissions in the course of 30 March 2020. The respondent filed an email in which he made legal submissions. A bundle of documents had been compiled from the court file and indexed and provided to the Queen’s Proctor. I also had a copy of that bundle and the index was provided to each of the parties in advance of the hearing to try to ensure that all concerned had access to the relevant documents. At the commencement of the hearing it transpired that neither the petitioner nor the respondent had access to a complete set of the papers but it appeared that both had available to them the critical documents which were the relevant marriage certificates and Ralph’s birth certificate.

The hearing was scheduled and convened by my clerk who ensured that all the parties were online before I joined the hearing. He confirmed who was on line, and that he was recording the hearing. At the commencement of the hearing I set out the ground rules that I expected to be followed during the course of the remote hearing in order to ensure that each party was able to give evidence, make submissions and participate to the fullest extent possible. They were

Remote hearing commencement protocol

1.Confirm all present who were expected and no one unauthorised, save that a person could be present to assist the Litigants in Person with managing technology but not to help with giving evidence or submissions [As it happened this being a divorce hearing it was technically in open court and I was robed so I informed the parties that other parties could be present. The husband required assistance on a couple of occasions when his Tablet appeared not to be charging and when he lost his wifi connection]

2. Confirm all can hear and see everyone

3. Confirm all in a quiet and private space.

4. Confirm arrangements made to record. Remind parties it is an offence under the Coronavirus Act 2020 to make any unauthorised recording of the proceedings either through skype or with any other equipment.

5. If your wifi disconnects you click back on the link to re-enter – any difficulties e-mail my clerk who would remain available but with audio/video muted.

6. Prior to giving evidence I would ask the parties to affirm the truth of their evidence with the usual form of affirmation.

7. Conduct of hearing

a. Mute your microphone when not your turn to speak

b. No one to speak when someone else is speaking – no interruptions

c. Only start speaking when invited to by me

d. Anything urgent indicate by palm up to screen

e. When evidence is being called the judge, the witness and the questioner microphones should be on.

f. Remind all that failure to follow ground rules would result in difficulties conducting hearing and if I conclude someone is disrupting the hearing I will consider excluding them and re-commencing the hearing without them participating. [The husband had been very disruptive at the previous hearing and had been, putting it mildly, extremely rude to at least 2 judges during earlier hearings]

8. Set out the ‘Agenda’ for the hearing.

Apart from minor technical glitches and occasional interruptions by the respondent the hearing proceeded in accordance with my directions. All involved abided in the main by the ground rules. The respondent’s need for occasional assistance with the technology demonstrated the benefit of having a ‘MacMicro’ friend in easy reach. I think both the wife and husband were satisfied that the remote hearing had allowed them to put their cases and give their evidence in a fair way although I appreciate that the perception of the judge may be different to that of the parties: ‘Remote Justice: a family perspective. Celia Kitzinger; The Transparency Project Blog 29 March 2020.’ I was satisfied that a fair hearing had been achieved. I would like to express my thanks to the parties and to Mr Murray for making the remote hearing work as effectively as it did.